Gorgeous photo via Onkel Wart.

I have been re-reading some of Robert Jackson’s speeches and work during his Nuremberg prosecution days lately. I’m trying to understand how we got to where we are at the moment from where we said we wanted to be back then.

And this portion of his closing arguments at Nuremberg has been haunting me:

Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. They have been given the kind of a Trial which they, in the days of their pomp and power, never gave to any man.

But fairness is not weakness. The extraordinary fairness of these hearings is an attribute of our strength. The Prosecution’s case, at its close, seemed inherently unassailable because it rested so heavily on German documents of unquestioned authenticity. But it was the weeks upon weeks of pecking at this case, by one after another of the defendants, that has demonstrated its true strength. The fact is that the testimony of the defendants has removed any doubt of guilt which, because of the extraordinary nature and magnitude of these crimes, may have existed before they spoke. They have helped write their own judgment of condemnation.

In my opinion, justice and democracy is never truly served by darkness. If you can bring a prosecution in the full sunlight of public discussion, why wouldn’t you?

Especially to dispel the very questions which darkness and secrecy raise about fairness of process, whether or not they are warranted.

By doing things the way we have, we have ensured the very thing that Justice Jackson decried: that there will always be doubt and questions about what was or was not done.  Because we have created the very blanks in the process that currently exist and, therefore, always will.